1 / 5

Symbolic Expression

Symbolic Expression. 1 st Amendment: “Congress shall make no law . . . abridging the freedom of speech” Says nothing about government’s ability to regulate conduct – and, in fact, gov’t can more easily regulate actions than it can speech.

sanam
Télécharger la présentation

Symbolic Expression

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Symbolic Expression • 1st Amendment: “Congress shall make no law . . . abridging the freedom of speech” • Says nothing about government’s ability to regulate conduct – and, in fact, gov’t can more easily regulate actions than it can speech. • But can government officials regulate all conduct regardless of the 1st Amendment? • Surely a rigid distinction between speech & conduct is unworkable. • On the other hand we can’t protect all conduct under the 1st Amendment • Key – must come up with a method for determining when conduct deserves 1st Amendment protection

  2. When is conduct expressive? – Saggy Pants hypo • Is Roy’s wearing of Jayhawks-style clothing “expressive” for 1A purposes? • Do policies regulating clothing choices always involve expressive choices – i.e., school uniform policies? Are students expressing themselves as in the hypo? • What factors are important to determining when conduct is expressive? • Are these factors exclusive – do art, music meet them? How are those forms of expression different from the Saggy Pants hypo? • What about an assassin who kills the President as a symbolic form of protest and DOES meet these factors, should they even be able to raise the 1A as a defense?

  3. O’Brien – Intermediate Scrutiny Test for Expressive Conduct • Is the regulation w/in the constitutional power of gov’t? • Does it further an important or substantial gov’t interest? • Is the gov’t interest unrelated to the suppression of free expression? • Is the regulation no greater than essential to the furtherance of the gov’t interest?

  4. O’Brien – Analyzing the Intermediate Scrutiny Factors • Is the regulation w/in the constitutional power of gov’t? • It is rarely going to be the case that regulations fall outside the power of the government • Does it further an important or substantial gov’t interest? • How “substantial/important” must the interest be? How substantial was it in O’Brien

  5. O’Brien – Analyzing the Intermediate Scrutiny Factors • Is the government interest unrelated to suppressing free expression? • Law that suppresses content fails prong 3. Look to face of law and reasons given for its enactment to see if it’s related to content. • SCT ignores legislative motive to determine whether an otherwise neutral law regulating conduct is aimed at suppressing free expression – does this make sense w/ symbolic conduct? • Is the regulation no greater than essential to further the govt’s interest? • How carefully tailored is the law in O’Brien? • SCT doesn’t require that the regulation be the narrowest possible – need only be a reasonable fit between means and end.

More Related